Stephens v Police No. Scciv-02-494
[2002] SASC 187
•4 June 2002
STEPHENS v POLICE
[2002] SASC 187
Magistrates Appeal
(ex tempore)
GRAY J This is an appeal against a sentence imposed by a magistrate.
Background
Daniel Ashlee Stephens, the appellant was convicted of driving whilst disqualified on 29 August, 2001[1]. The learned magistrate imposed a sentence of 14 days imprisonment. He declined to suspend the sentence.
[1] The terms of the complaint were as follows:
The magistrate gave short ex tempore remarks:
“You have pleaded guilty to the offence of driving disqualified. The disqualification was a court-imposed disqualification in June of last year (2001) by the Elizabeth Magistrates Court. You would have been warned at the time that the consequences of driving whilst disqualified would be gaol. Legislation provides that for the offence of driving whilst disqualified, the penalty is for up to six months imprisonment for a first offence.
When you were apprehended on 29 August 2001, which is only two months after you had appeared in the Elizabeth Magistrates Court, you knew that you were disqualified. This is without doubt, contumacious driving on your part and there is really no excuse for it. You knew very well that you were running the risk of going to gaol if apprehended. Magistrates warn defendants in court, that for a court-imposed licence disqualification, they can expect gaol if they breach such an order. It would render them farcical if those warnings were not carried through. A clear and consistent message must be sent out to the community that court orders are not to be taken lightly.
The appropriate penalty on this occasion is a term of imprisonment. It is a question of whether I consider it appropriate to suspend that term of imprisonment. You come before this court for the first time as an adult; you had just turned 18 at the time of the commission of this offence. You don’t have a bad history of offending. There is no suggestion that the offending was not contumacious. You knew very well the risks that you were running at the time. In all of the circumstances, I therefore find that there is nothing unusual in this case which would warrant the exercise of my discretion to suspend the term of imprisonment.
A conviction will be recorded with a term of imprisonment of 14 days, to commence forthwith. Court fees of $84.50, levy of $28.00 and prosecution costs of $16.00.”[2]
[2] The appellant had a history of driving offence. In May 2001 he was convicted in the Youth Court of driving under the influence, driving unregistered and driving without a licence arising from an incident in April 2001. He was disqualified from driving for a period of 12 months. In June 2001 he was convicted of driving at night without effective lights, driving without a licence and driving with an excess blood alcohol reading. The magistrate imposed a further licence disqualification of 13 months cumulative upon his previous disqualification. This was his first offence of driving whilst disqualified.
Issues on Appeal
Counsel for the appellant submitted that the magistrate had erred in imposing a sentence of imprisonment. In the alternative, it was said that considering the appellant’s age, personal antecedents and lack of prior offending (other than traffic offences) the magistrate should have suspended the sentence.
Counsel submitted that demonstrable error had occurred in the sentencing process and that the sentence imposed should be set aside and the appellant re-sentenced.
On appeal it was accepted by counsel for the appellant that when the case was before the magistrate it had been conceded that the driving was contumacious. Counsel had also accepted that the appropriate order was a term of imprisonment. It is apparent that the appellant had received legal advice and the submissions to the magistrate accorded with his instructions.
Counsel for the appellant said that both concessions made were incorrect. However, it was accepted that the magistrate was entitled to accept the concessions and act upon them. Additionally it was submitted that despite the concession of contumacy it was at worst a borderline case.
It was contended that if the court decided to sentence afresh that concessions made before the magistrate should be disregarded in the resentencing process.
The power to suspend a sentence of imprisonment is found in section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA):
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.”
The court is only empowered to suspend a sentence if good reason exists. The magistrate did not apply this test. He considered that:
“there was nothing unusual in this case which would warrant the exercise of my discretion to suspend the term of imprisonment”.
The test of whether good reason exists is different to a consideration of whether unusual circumstances warrant an exercise of the power to suspend. The magistrate misconstrued the words of the statute. The exercise of his discretion proceeded on an incorrect basis. Error has been demonstrated. The appellant must be resentenced. It is appropriate for this court to perform that task[3].
[3] Dinsdale v The Queen (2000) 202 CLR 321
Counsel for the appellant submitted that the appellant’s conduct was not contumacious. It was accepted that the conduct was a deliberate breach of the court order. However it was said that the driving was not undertaken in total disregard of the order of the court but out of a misconceived duty to an employer. The appellant was young and immature and faced with a conflict between his obligations to the court and his employer: he simply made the wrong choice.
It was further argued that even if the conduct was characterised as contumacious, it was inappropriate to imprison a young person of barely 18 years of age for this kind of offence. It was said to be a case in which leniency should be extended by the Court.
Counsel for the respondent submitted that in the circumstances the exercise of the discretion not to suspend did not miscarry and that the appeal should be dismissed.
Conclusions
I accept the submissions of counsel for the appellant. Error occurred in the sentencing process. The concession that it was appropriate to order imprisonment in these circumstances is a concession that I do not accept. In some circumstances a court may have no alternative but to imprison, but this is not such an instance.
In the Police v Cadd[4] Mullighan J considered an appeal against sentence for a charge of driving whilst disqualified:
“If the circumstances dictate that the sentence must be imprisonment, the length of the term must also be determined by the circumstances of both the offence and the offender. Also, it will then be necessary to consider suspending the sentence. It is well accepted that a suspended sentence of imprisonment is nonetheless a sentence of imprisonment and is a very significant punishment: Wood v Samuels (1974) 8 SASR 465 at 468, per Walters J and Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, per Bray CJ. Pursuant to s 38 of the Act, the sentence of imprisonment may be suspended if the court ‘thinks that good reason exists for doing so’. Such reason may be found in the circumstances of the offence or the offender and Parliament has not laid down any particular matters which may agitate the exercise of the discretion to suspend. Nevertheless when exercising the discretion to suspend a sentence of imprisonment, the judges and magistrates must have regard to all the relevant matters and principles.”
Other members of the court differed. The majority view has been summarised by Doyle CJ in an addendum to his reasons[5] in the following terms:
“Nevertheless, each member of that majority accepts, as Mullighan J says, that the punishment should be imprisonment ‘in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...’. Mullighan J goes on to explain what he means by that. Two members of the majority (Doyle CJ and Duggan J) would go further than Mullighan J. But the approach of Mullighan J is common to all three judgments.”
[4] (1997) 69 SASR 150 at 179
[5] (1997) 69 SASR 150 at 171
The appellant’s driving on this occasion was deliberate. He evinced a disregard for the order imposed by the Court. However he offered an explanation. He had been asked to drive by his employer and because of his employment and concern over possible displeasure by his employer, driving assumed a greater importance to him than the order of the court. This was inappropriate but understandable. It is difficult to conclude that the appellant’s conduct was effected in total disregard of the court order which disqualified him from driving. At worst this was a borderline case of contumacy.
It is inappropriate to impose a sentence of imprisonment in this case. I have not had regard to the concessions at first instance that the appellant’s behaviour was contumacious and that it was appropriate to order imprisonment. The appellant is a young person who had just turned 18 years. He has a background of difficult personal circumstances but despite this has good character references and an employment history which shows a willingness and determination to find and retain employment. Had the order for imprisonment remained, good reason exists for suspending the sentence having regard to the appellant’s age, personal antecedents and the fact that he currently has permanent part-time employment.
This appeal must be allowed. The sentence imposed by the magistrate is set aside.
Resentence
The appellant is convicted of the offence of driving whilst disqualified. He is to perform 80 hours of community service within the next six months. He is to be released on a bond to be of good behaviour for three years. In the event of breach he is to attend court to be re-sentenced.
The terms of the bond are:
. that the appellant be of good behaviour,
. that the appellant be under the supervision of a correctional services officer,
. that the appellant obey all of the lawful directions of his correctional services officer and attend such courses and programs as may be directed.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 The terms of the complaint were as follows:
“On the 29th day of August, 2001 at Marden in the said State drove a motor vehicle on a road namely OG Road while he was disqualified from holding or obtaining a licence.
Section 91 of the Motor Vehicles Act, 1959.”2 The appellant had a history of driving offence. In May 2001 he was convicted in the Youth Court of driving under the influence, driving unregistered and driving without a licence arising from an incident in April 2001. He was disqualified from driving for a period of 12 months. In June 2001 he was convicted of driving at night without effective lights, driving without a licence and driving with an excess blood alcohol reading. The magistrate imposed a further licence disqualification of 13 months cumulative upon his previous disqualification. This was his first offence of driving whilst disqualified.
3 Dinsdale v The Queen (2000) 202 CLR 321
4 (1997) 69 SASR 150 at 179
5 (1997) 69 SASR 150 at 171
“On the 29th day of August, 2001 at Marden in the said State drove a motor vehicle on a road namely OG Road while he was disqualified from holding or obtaining a licence.
Section 91 of the Motor Vehicles Act, 1959.”
6
0